Judge: Appropriation of songs is not infringement.
Singing a song is worse than theft of the song?
Guillermo Venegas Lloveras was a relatively little known composer outside his native Puerto Rico. He died in 1993. Those that knew him and his music considered him on of the great composer of his time. A web site dedicated to him has more information: http://www.gvenegas.com . The author of this article is a son of the composer and the Executive Director of Guillermo Venegas Lloveras Inc.
As the world and the press discusses whether downloading of songs is or is not theft or copyright infringement and kids are threatened with infringement lawsuits by the record companies through RIAA, a little known case where two music publishers and one performance rights organization were sued will surely create a commotion in the music business and in legal circles in the days ahead.
The companies we sued were Latin American Music Company, a publisher, ACEMLA de Puerto Rico, a performance rights company and Peermusic International Corporation, a music publisher . The first two companies are managed and owned by the same persons and are widely known together as ACEMLA. Here we will center on ACEMLA issues, leaving the Peermusic issues, equally disturbing for another day. Anyone wishing details on the Peermusic part of the case can visit or web page.
During trial it was proved that a company named ACEMLA illegally claimed the ownerships rights of hundreds of songs composed by Venegas. The trial ended on December of 2003. Five months later Judge Jose A. Fuste, the president of the court, issued a verdict: ACEMLA committed a minor infringement only with only one song infringed and not hundreds as claimed by the plaintiffs. Plaintiffs appealed and a judgment was issued on September 16, 2005 by the First Circuit of Appeals (Boston). The court simply agreed with the previous District Court decision, that the appropriation of songs, the illegal copyright registrations of 80 songs, the illegal blanket licensing of the hundreds of songs to radio stations, the licensing of 16 records of which over 5 million records were produced (the royalties were paid to the "illegal" publisher, ACEMLA) is not infringement.
As to ACEMLA, what the court said was that actual and direct performances and copying was required to prove infringement and such performances and copying was not proved by plaintiffs even though, ACEMLA admitted licensing radio stations for profit and licensing many CDs, including many CDs produced by Sonolux. Incredibly the judge found no infringement on the production of the 16 illegally licensed Sonolux CDs even though another judge, on another case (Venegas vs. Sonolux) found the CDs to have infringed our rights and awarded us a damage judgment of 1.6 million dollars, on February, 2003. While the judgment was later reduced to $200,000 (a third of what the unpaid royalties would have been) we have not yet collected any money, because, we guess, the Federal District Court of Puerto Rico is too busy.
This is one of the several parts that are hard to believe: The 16 CDs infringed our rights per the District court but ACEMLA, who illegally licensed the CDs and who was paid the royalties did not infringe, says Judge Fuste, because we plaintiffs presented no proof that the CDs were actually produced. In fact over 5 million records were produced, a reason why we were awarded 1.6 million dollars in damages by the very same District Court..
Another hard part to believe is that Judge Fuste says that a song was presented on a television program and that ACEMLA was paid many thousands of dollars for the performance but then contradicts himself (the judge that is) in another part of his very long opinion of 74 pages by saying that no proof was presented that the actual performance was made. The program is reputed to be one of the most widely seen on local television history, the first really expensive musical production Puerto Rico television history. and the song by Guillermo Venegas (Genesis) was a highlight. Of course, the contradiction of Judge Fuste meant that an award damages for that infringing performance was not given to us. Briefly, Judge Fuste says the song was performed and that it was not performed in the same opinion.
Another hard part to believe is that ACEMLA copyright registered 80 if our songs as if they were the owners when in fact they were not, as confirmed by the judge in his opinion. But that is not copyright infringement per Judge Fuste. Well, actually he never considered the question if fraudulently registering songs in oneís name is or is not copyright infringement.
It is incredible that music publishers are saying that downloading a song is infringement while judges are nonchalant about the theft of the actual song ownership. The press has said nothing of our case, a strange thing considering that my father was locally very famous and his music is very well known.
To resume the district court decided that illegal authorization (licensing) was not infringement. But there is contradiction in the Circuit Court. In another lawsuit involving the same publishers, Peermusic vs. ACEMLA, where Peermusic alleged that ACEMLA appropriated their songs too, Judge Perez-Gimenez decided that ACEMLA infringed the songs of Peermusic by merely having Peermusic owned songs in the ACEMLA song catalog without Peermusicís authorization.
Indeed is strange that the same Appeals Court (First District) decided previously on another case, STORAGE TECHNOLOGY CORPORATION, Plaintiff-Appellee, v. CUSTOM HARDWARE ENGINEERING & CONSULTING, INC.: "A copyright owner alleging a violation of section 1201(a) consequently must prove that the circumvention of the technological measure either infringes or facilitates infringing a right protected by the Copyright Act. Id. at 1203." The meaning is clear: Facilitating infringement is infringement even if no actual infringement has been proved. Facilitating suffices.
As we have seen the District Court of Puerto Rico contradicts itself on the question of authorization only (is it infringement?) while the Appeals Court agrees in our case that appropriation and authorization alone is not infringement, while in another case it says that facilitating infringement alone is infringement.
All in all, ACEMLA has been ordered to pay us an award of $16,000 of the over $240,000 (current worth) ACEMLA has received in illegal royalty payments that we know of and are documented in the Judge Fuste opinion. This way ACEMLA gets to keep most ($224,000) of the illegally earned money.
Previously, in the same District Court, a singer-composer named Glenn Monroig was awarded damages of over $7,000,000 after one of his songs was used by a record company without a license and in the process they changed one word. That decision, which was never overturned, gave the songwriter 437 time more in damages than we got ($16,000) for the infringement of and hijacking for 8 years of all our 500 or so songs.
We plan to ask the Appeals Court to reconsider their judgment because of the above discrepancies and others not presented here.
Hope that the copyright gurus out there take a look here. Maybe someone can explain this.
Author: Rafael Venegas
Guillermo Venegas Lloveras Inc.
For details this is the web site to visit: